Where There's Smoke, There's Fired

For the past eleven years, Josh Harvey has been a patient under California’s medical marijuana program. He began using cannabis for ulcers and anxiety, then it became part of his treatment for Crohn’s disease and mental health issues. A recovering drug addict, Harvey has refrained from using other drugs or alcohol for more than five years—and cannabis, he says, helped him do it.

Having persevered through his own recovery, Harvey now works as an addictions counselor at a number of clinics in Southern California, including one in a homeless shelter. Despite a workplace policy against drug use and the risk of random drug testing, he deems cannabis a medicine (not a drug) and continues to use it.

“I wake up and it’s so hard for me to eat and I’m so nauseated, I have to smoke weed to hold down food in the morning,” he says. “It can take up to four or five hours after I’ve woken up and used cannabis to be able to eat.”

Yet Harvey’s use of cannabis puts him at constant risk of being fired—even though he lives in California, where even recreational marijuana use is legal. It’s a predicament he shares with many other people.

According to survey data from the Society for Human Resource Management, 94 percent of HR professionals at organizations operating in states with legal and medical marijuana say they have formal substance use policies in place. Between 73 and 82 percent say their workplace has a zero tolerance policy for cannabis use while performing work. And between 41 and 50 percent have fired employees for first time violations. The most frequently cited disciplinary action for first-time marijuana-use violations is termination.

“This is a trap that’s caught a lot of people: Having your state make marijuana legal still has no impact on your boss,” says Lew Maltby, president of the National Workrights Institute, a New Jersey-based advocacy group. “Your boss can fire you for lots of things that are legal. In American law, your boss can fire you for any reason at all as long as it’s not discriminatory of race or gender.”

It’s against the law for any federal employee, from Congressperson to postal worker, to use cannabis. It’s also commonly forbidden for public employees who engage in physical labor that carries a safety risk, such as operating heavy machinery. Firefighters, school teachers, health workers, and other public servants are still subject to drug testing for cannabis, even in legal states. And private companies can still set and enforce rules against marijuana use, within limits still being hashed out in the courts.

One issue for cannabis users is that drug testing does not prove impairment. It merely measures the presence of THC, or tetrahydrocannabinol—marijuana’s main psychoactive compound—in a person’s body, and can remain for up to eleven weeks. That means that even if a person ingested cannabis off duty, or even several weeks prior, he or she can still fail a drug test.

While opinion polls show that 61 percent of Americans say marijuana should be legal and up to 94 percent support medical marijuana, workplace policies have yet to catch up.

Cannabis activists have railed against the shortcomings of cannabis drug testing for some time now. When the state of Washington legalized cannabis in 2012, Paul Armentano, deputy director of NORML (the National Organization for the Reform of Marijuana Laws), published an op-ed urging employers to rethink the practice of drug testing for pot.

“Those who consume alcohol legally and responsibly while off the job do not suffer sanctions from their employers unless their work performance is adversely affected,” Armentano noted. “Employers should treat those Washingtonians who consume cannabis legally while away from the workplace similarly.”

In fact, more lenient cannabis laws have been linked to greater participation at work, less absenteeism, and overall higher wages. One study by researchers at Johns Hopkins and Temple University found that the passage of medical marijuana laws “leads to a 9.4 percent increase in the probability of employment and a 4.6 percent to 4.9 percent increase in hours worked per week” among employees fifty and over.

While opinion polls show that 61 percent of Americans say marijuana should be legal and up to 94 percent support medical marijuana, workplace policies have yet to catch up. Yet there are signs that the tides are turning, albeit slowly, in favor of the cannabis-consuming employee.

“This is an evolving issue,” says Jim Reidy, a labor law attorney at the law firm of Sheehan Phinney in Manchester, New Hampshire. “The moving parts are the changes to state law and state regulation of cannabis and related products.” He attributes this trend to a number of factors: low unemployment, popular opinion in favor of legal marijuana, the tsunami of state laws in favor of legalization, and the public focus shifting from cannabis to the opioid crisis.

Recently, Reidy says a client of his in the organic food processing industry decided to abandon drug testing for marijuana. Seven of the eight employees who failed the client’s drug test had marijuana in their system. At the end of the day, employers hiring for positions that are not safety-sensitive need to fill those positions. And disqualifying employees or applicants due to cannabis, even in a legal state, only needlessly shrinks the labor pool.

“The way I look it it, work time is for work, and you should come to work prepared to perform your highest and best,” Reidy says. “Whether it’s staying up late binging on Netflix or overindulging in alcohol or drugs or whatever your choice is, if you come to work late or you're not giving your highest and best effort, it would be reasonable to say it would be better that employees didn’t use this if it impacted their effectiveness at work.”

Yet while a hangover from drinking too much can render an employee just as or even more impaired than an employee who shows up stoned, employers do not make it a practice to ban drinking in off hours. (For the record, there’s no such thing as a hangover from cannabis.)

“My prediction is there will be some clarity between federal and state law, or it will be at some point that you’ll have legal marijuana across the country,” says Reidy.

In states across the country, the courts have begun to swing in recognition of medical marijuana patients’ rights. In light of this trend, the American Bar Association Section of Litigation leaders have cautioned employers to take note of the shifting direction in employment litigation.

In May 2017, the Rhode Island Superior Court ruled that an employer had violated the law when it refused to hire a medical marijuana user. A few months later, in July 2017, the Supreme Judicial Court of Massachusetts ruled that an employer’s failure to accept an employee’s need for medical marijuana violated the state’s Fair Employment Practices Law. The worker was fired after just one day on the job, for failing a drug test; she sued, claiming she was being discriminated against for her disability.

And in August, the U.S. District Court for the District of Connecticut decided that the state’s medical marijuana law created an implicit right of action that could not be trumped by federal law, including the Controlled Substances Act. According to the court, “a plaintiff who uses marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refuses to employ her for this reason.”

Meanwhile, the Trump Administration continues to send conflicting messages on marijuana. First there were Attorney General Jeff Sessions’s threats to revamp the Drug War and crack down on legal cannabis, followed by the President’s guarantee to Republican Senator Cory Gardner that Colorado’s legal marijuana wouldn’t be targeted. Overall, Reidy says, the signal is “that there’s a real softening in the resolve against marijuana.”

Yet the law is still the law, and in many parts of the country employers are relying on it to purge their workforces of cannabis users. Even in Colorado, where state law says employees can’t be fired for legal off-duty behavior, employees can still get the boot for failing a marijuana test if the employer cites federal regulations.

In 2015, the Colorado Supreme Court ruled against quadriplegic Brandon Coats, who was fired for testing positive for cannabis, even though he used it in off hours. The court made its decision on a “lawful activity” ruling that extended from state to federal law. Similar rulings have been issued by courts in California and Washington.

In response, the Drug Policy Alliance, a national advocacy group headquartered in New York City, is trying to write protections into the laws. Says staff attorney Jolene Forman,“We try to protect people who are complying with state law and not endangering anyone in their workplace so that they’re not punished for doing something that’s legal.”

Josh Harvey was twenty-eight years old on February 22, 2013, when he was a passenger in a vehicle pulled over by police. Afraid that they would find the bag of methamphetamine in his pocket, Harvey swallowed its contents—all two grams of it. He ended up in the hospital, where he was later told that his heart had stopped twice.

The following day, February 23, he woke up in jail, and from that moment on promised himself sobriety. He has the date tattooed on his neck. Five months into his sobriety, he started school again, received his professional license from the state of California, and began working in private and nonprofit treatment centers, as well as several high-end rehab facilities up in the hills of Los Angeles. He continues to smoke pot.

“Marijuana saved my life,” says Harvey. “In the treatment world and in the twelve-step community, marijuana is considered a drug, across the board. I got sober in the rooms of AA, but I didn’t share openly that I smoke marijuana because if I shared that, no one would consider my clean time to be accurate.”

In fact, cannabis has been found to be a safer alternative to heroin and prescription painkillers, as well as a possible means of curbing opioid abuse. One large study found a 25 percent decrease in opiate overdose deaths in states where medical marijuana was legal, compared with those where it wasn’t.

Still, as Harvey notes, very few treatment centers want to even consider cannabis as an option: “It’s not covered by insurance, and this is corporate America. Marijuana isn’t a corporate entity.”

Harvey remains subject to random drug testing at work, though he’s managed to avoid it so far. “If they were to drug test me and found marijuana in my system, they would fire me immediately, no questions asked,” he says. “I also work at a detox facility that would do the same exact thing. If a client looks at me and says you look stoned, I could get randomly drug tested and I could lose my job.”

Harvey has been fired from other jobs for smoking cannabis. He says he worked at one place for three days until they drug tested him and fired him on the spot, while another place fired him the first day. Another center, where Harvey had interned for several months before his job offer, confronted him about his cannabis use.

“They said someone told them I smoke pot and they couldn’t employ me,” he says. “I said, ‘No, I don’t smoke pot, I use medical marijuana.’ There’s a big fucking difference.”

If he were fired for marijuana again, Harvey fears he could lose his license and his profession—everything he went to school for and became good at.

He says he’d want to take the case to court, arguing discrimination based on his health issues. “I would love to fight for it,” Harvey says. “When I smoke pot, I don’t want to use heroin. You can’t tell me that I have to tell a person that’s wrong. If I don’t believe that’s wrong, I shouldn’t have to lie. I’m not a liar today, I’m a sober person.”

As Harvey sees it, something in the treatment industry needs to change. “I’m watching people die in record numbers. Nothing will change unless someone stands up,” he says. “It’s my dream to open up a facility to use cannabis as a tool for sobriety. There’s a Jewish saying: If you can save one life, you can save the world. And that rings true to me. I want to save the world.”

Sidebar: State-by-State Legalization

Oklahoma became the most recent state to “go green” this past June, with the passage of Ballot Question 788 to legalize medical marijuana. The red state’s policy shift made it the 30th in the country to legalize medical marijuana, joining the ranks of other Republican states including Arkansas, Montana, and North Dakota, and proving that cannabis policy reform is a bipartisan issue.

Nine states, as well as the District of Columbia, have legalized marijuana use outright for adults: California, Oregon, Washington, Colorado, Alaska, Maine, Massachusetts, Nevada, and Vermont. Later this year, Michigan will vote on an adult use measure, as well.

California, which passed an initiative in 2016 to legalize the use of recreational cannabis, was also the first state to pioneer medical marijuana with the passage of Proposition 215 in 1996. Other states, like New York, have legalized cannabis medicine through more restrictive programs that, for instance, ban smoking the cannabis flower and require patients to qualify for a medical marijuana recommendation via one of just a handful of terminal conditions.

Nonetheless, public opinion has far outpaced public policy, with upwards of 90 percent of the American public supporting medical marijuana, and more than 60 percent in favor of legalization.

With Canada having recently legalized marijuana in full, joining other cannabis-legal or decriminalization pioneers like Uruguay and Portugal, it’s likely only a matter of time before the United States—with an $11 billion state-legal pot economy of its own—will catch up.

Comments (1)

Drug testing

I was fried for testing positive for thc. Worked at my job for over a year. Then they said they wanted to check my sugar. I ask why they told me it was because they were concerned that I might be sick? So I said go ahead. It checked just fine then I was ask to take a breatherlizer. So then again I said ok. It was 0.0. Then they said will you take a drug test I said yes. Tested positive for thc so I was fried. Just wish I could smoke.

Robbie Jackson101 days ago

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